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Jin v. Pacific Buffet House

August 24, 2009

MING SHU JIN, PLAINTIFF,
v.
PACIFIC BUFFET HOUSE, INC. AND EUN SOOK AHN, DEFENDANTS.



The opinion of the court was delivered by: Pohorelsky, Magistrate Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Having considered the evidence at trial and the submissions of the parties, the court makes the following findings of fact and reaches the following conclusions of law:

FINDINGS OF FACT

1. The defendant Pacific Buffet House, Inc. is a now-defunct corporation that formerly operated a restaurant known as "Seaworld" in Elmhurst, Queens. In 2001, apparently because of allegations of trademark infringement, the name of the restaurant changed to "Pacific World." See Tr. 449;*fn1 Def. Ex. I. (Seaworld and Pacific World are collectively referred to herein as the "restaurant.")

2. The defendant Eun Sook Ahn was employed at the restaurant and had substantial authority over the operations of the restaurant throughout the period of time from August 2000 to at least March 2003. She made decisions concerning the hiring of employees and the wages they were to be paid. She directed the activities of the various managers at the restaurant, and made decisions about when and whether the plaintiff was to be paid. At least as early as March 2001, the defendant Ahn also had signature authority on the restaurant's checking account, and in November or December of 2001 became President of Pacific Buffet House, Inc. Pl. Ex. 6.

3. The plaintiff Ming Shu Jin, a native of China who immigrated to the United States in 1995, was employed as a waitress at the restaurant from August 2000 to February 23, 2003. During her employment there, she went by the name "Sunny Han," and held a bank account under the name "Ping Wan." At trial she testified under the name "Myoung Suk Kim."

4. At the time that the plaintiff commenced her employment at the restaurant in 2000, the business was owned by three persons -- the defendant Ahn's former husband, named Lee, and two other partners. The defendant's former husband owned 40% of the business and the other two each had 30% shares.

5. In early 2001, litigation between the defendant Ahn and her former husband led to the appointment of a receiver to oversee the financial aspects of the operation of the restaurant. The receiver was in place for the period from approximately March to November of 2001.

6. While the receiver was in place, the defendant Ahn had authority to operate the business, including the authority to hire and fire employees, but had to obtain approval from the receiver with respect to significant decisions involving financial matters. The defendant Ahn's husband was not allowed on the premises.

7. In December 2001, after the receivership had been dissolved, the defendant Ahn assumed her former husband's 40% share of the business and became President of Pacific Buffet House, Inc. She remained in that role from December 2001 to at least May 2003.

8. The plaintiff was hired to work at the restaurant by the defendant Ahn, who knew her through the plaintiff's previous employment at another restaurant operated by the defendant Ahn. Ms. Ahn sought out and enlisted the plaintiff to come to the restaurant to work as a waitress. She made the decision to hire the plaintiff and set the terms and conditions of her employment, including the amount of her wages.

9. When the plaintiff commenced employment in August 2000 she was paid wages at the rate of $4.50 per hour. In or about February 2001, her wages were lowered to $3.00 per hour for approximately three weeks, and then raised to $5.00 per hour. The rate remained at $5.00 per hour until her employment ended on February 23, 2003. The plaintiff's wages were paid in cash, amounting to $225 per week when she was earning $4.50 per hour and then $250 per week when she was earning $5.00 per hour. Tr. 68.

10. At various times during her employment, the plaintiff was not paid her weekly wages. By November of 2002, her unpaid back wages amounted to approximately one year of wages. After she complained, payment of her wages on a weekly basis resumed for a period of time, and she also began receiving extra payments, some in cash and some by checks, to make up for past unpaid wages. See Pl. Ex. 4A, 4B. With the extra payments the arrearage was reduced to six months. Payment of the plaintiff's weekly wages ceased again in January and February of 2003, however, and the plaintiff the estimates that by the time her employment at the restaurant terminated on February 23, 2003, the arrearage for unpaid wages stood at approximately eight months.

11. Beginning in February 2002, the defendants withheld $23 from the plaintiff's weekly pay as a "tip tax," presumably to satisfy withholding tax requirements with respect to tip income received by the plaintiff. There is no evidence, however, that any such withholding taxes were ever paid over to the Internal Revenue Service with respect to the plaintiff, or any other employees.

12. The plaintiff typically worked five days per week, with Mondays and Wednesdays off. On weekdays, the plaintiff worked from 3:00 p.m. to between 10:30 and 11:00 p.m. On weekends, the plaintiff began working between 10:00 and 10:15 a.m., and completed her work between 11:30 p.m. and midnight. When there were parties on the weekends, however, she could work as late as 1:00 to 2:00 a.m. Parties occurred approximately five times per month. Toward the end of 2002, the plaintiff's Sunday workday changed, commencing at 2:00 p.m. rather than in the morning. Thus, the court finds that in an average workweek prior to December 2002 the plaintiff would work a total of 52 hours, including parties, and that from December 2002 until her employment ended her average work week totaled 48 hours.

13. The plaintiff's testimony about her work hours was corroborated by the testimony of a co-worker, In Hong Lee, who was also employed as a waiter at the restaurant for a portion of the time that the plaintiff was employed there.

14. The restaurant required the employees to keep track of their hours by means of time cards that the employees used to "punch in" and "punch out" of work each day. No time cards were produced by the defendants either in discovery or at the trial, nor did the defendants produce any other records relating to actual hours worked and wages paid.

15. Although the defendant Ahn and her daughter offered testimony different from that offered by the plaintiff concerning hours and wages, their testimony lacked detail and they differed from one another concerning the numbers of ...


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